Morally Neutral Description of Law: H.L.A. Hart’s Theory

I. Introduction.

There are many views on the interconnection of law and morality. Natural law theorists, for example, assert that morality is integral to law; thus, the legitimacy of law depends on whether it is moral or not. In contrast, legal positivists advocate for the “separation thesis”, regarding law as a social phenomenon. This means that what makes law legitimate is not its moral content, but rather social facts, including attitudes and beliefs towards them. “In the most general terms, the positivist social thesis is that what is law and what is not is a matter of social fact”[1]. To explain law from this perspective – by using social facts and nothing else – is to provide a morally neutral description of it. I stand with positivists, more specifically, H.L.A. Hart, in the sense that it is possible to provide a morally neutral description of law.

II. Hart’s theory of law.

Hart’s theory of law lies in his claim that “there are therefore two minimum conditions necessary and sufficient for the existence of a legal system”[2]. First, primary rules must be obeyed by the majority, and second, secondary rules must be accepted by the officials. He defines primary rules as, the “general attitude of the group towards its own standard modes of behavior”[2], or in simple terms, regular rules that apply to the behavior of regular persons. Secondary rules are “rules about rules” that arise from the need to solve the three defects of primary rules: uncertainty, staticness, and inefficiency. In an example of a children’s game, the basic rules about how to play the game are primary, while the rules about how to change them, or who gets to decide if a player is acting against them, are secondary. Each defect about the primary rules requires a certain type of secondary rule as a remedy. Staticness is remedied by “rules of change”, which empower an individual or body of persons to determine the means of making new primary rules and eliminating old ones[2]. Inefficency is solved by “rules of adjudication”, that establish which individuals can make decisions if a particular primary rule has been broken. Uncertainty about the content of the law is addressed by the “rule of recognition”, which establishes what the law is, and which is the most important of secondary rules for Hart.

III. Rule of recognition.

The rule of recognition is of great importance to Hart, because it not only remedies uncertainty, but also explains how a legal system is unified. By pursuing “a chain of legal reasoning”(Why is a particular statute considered valid? Because it has been enacted by Parliament. And why is Parliament's decision valid? Because Parliament has been granted the authority to enact statutes by the Constitution. Why is the Constitution valid? Because it is the will of the people, etc.), Hart establishes that the validity of law goes all the way down to the rule of recognition, that it is the starting point of the chain. It “provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity”[2]. It is therefore the foundation of the whole legal system, and is ultimately, a social rule. What this means is that the rule of recognition comes from the society itself. Going back to the children’s game example, the answer to the question “Where did the rules of the game come from?” would be “from the children themselves, their attitudes and thoughts within the game, or “internal point of view” the way Hart calls it.

IV. Challenges and rebuttals.

The main challenge that could arise against the morally neutral description of law is the famous Nazi Germany example. From the positivist point of view, laws of the Nazi regime, which were clearly immoral, are considered legitimate as long as they meet formal criteria. One basic response to this is that the laws of the Nazi regime are indeed “laws,” but whether they are good or bad laws is another question. However, this criticism may not be applicable to Hart’s theory. As mentioned earlier, Hart establishes that the validity of the legal system lies in the rule of recognition, which is internalized by society. It must be considered that the laws of the Nazi regime were implemented through fear and manipulation rather than genuine general obedience. There is no internalization – no acceptance from the internal point of view. These laws are not based on a valid rule of recognition; therefore, they are not valid themselves, and do not constitute a part of a legal system. We cannot say that the rules of a game are valid and accepted by the children playing the game if they were forced by adults to play it in that way.

V. Conclusion.

So, Hart's theory of law presents a straightforward understanding of what law is, separate from moral considerations. Based on Hart’s theory, one could form the description of law as such: “Law is a set of primary rules obeyed by the majority of the society and secondary rules accepted by the officials, where the validity of these rules is based on a rule of recognition as a social fact”. It is evident that there is simply neither a need nor a place for morality in this definition, it simply plays no role in explaining what law is. Therefore, a morally neutral description of law is indeed possible.

Bibliography

1) Joseph Raz, The Authority of Law (Oxford Univ. Press 1979)

2) H. L. A. Hart, The Concept of Law (2d ed., Penelope A. Bulloch & Joseph Raz eds., Oxford Univ. Press)